Volume 220 — Connecticut Appellate Reports

The defendant, whose marriage to the plaintiff previously had been dis- solved, appealed to this court from the judgment of the trial court denying his postjudgment motion to vacate a series of orders finding him in contempt for his failure to comply with the parties' separation agreement, which had been incorporated into the judgment of dissolu- tion. The plaintiff filed two motions for contempt in 2014, alleging that the defendant failed to comply with the court's orders that had been issued in response to her fifteen prior motions for contempt. The defen- dant failed to appear for a hearing on the 2014 motions, and the court found him in contempt for his failure to provide to the plaintiff his life insurance information, to pay child support, to contribute to certain required expenses and to pay her attorney's fees. At a subsequent hear- ing, the court incarcerated the defendant for one week for his failure to purge the contempt. After a third hearing in 2014, the court found that the defendant was still in contempt and issued additional orders, from which the defendant neither appealed nor filed a motion to reargue. In 2019, the plaintiff filed another motion for contempt. In 2020, the defendant filed a motion to vacate the 2014 contempt orders, arguing that the orders were issued, and he was incarcerated, in violation of his constitutional rights because he was absent from the initial 2014 hearing due to a serious heart condition. The court denied the motion to vacate, concluding that it lacked the authority to overturn a judgment of contempt rendered five years previously when the defendant alleged the court committed error in its judgment. Thereafter, the court denied the defendant's motion to stay the trial court proceedings during the pendency of this appeal. Held: 1. The defendant could not prevail on his claim that the trial court incorrectly concluded that it did not have the authority to vacate the 2014 contempt orders, which was based on his claim that a court retains inherent equitable authority to vacate a contempt order beyond the four month deadline imposed by the applicable statute (§ 52-212a) and rule of prac- tice (§ 17-4 (a)): although trial courts have limited continuing authority to vacate an order of civil contempt on the ground that the contemnor purged the contempt, nothing in the case law relied on by the defendant suggested that courts have continuing authority to vacate a civil con- tempt finding on any other basis, and the defendant did not seek to vacate the 2014 contempt orders because he purged the contempt but, rather, because the court improperly found him in contempt; moreover, although trial courts have continuing authority to effectuate prior judg- ments, courts are not permitted to substantively modify or correct prior judgments, and, in this case, the defendant's motion to vacate did not seek to vindicate the 2014 orders but, rather, to vitiate them. 2. This court declined to review the defendant's claim that the trial court improperly denied his motion to stay the proceedings during the pen- dency of this appeal; the defendant's claim was not properly before this court because the defendant failed to file a motion for review of the trial court's decision pursuant to the applicable rule of practice (§ 66- 6), and, although the defendant characterized his motion to stay not as a request for an appellate stay but, instead, as a request that the court continue a hearing on the 2019 motion for contempt until the conclusion of this appeal, this characterization was belied by the relief sought in his motion to stay and the claims raised in his principal appellate brief challenging the court's actions regarding the appellate stay. Argued November 7, 2022—officially released June 27, 2023

Convicted of the crimes of unlawful restraint in the second degree, sexual assault in the fourth degree, attempt to commit sexual assault in the third degree and sexual assault in the third degree, the defendant appealed to this court. The defendant rented a basement apartment in his raised ranch home to K. One day, K texted the defendant to let him know that her daughter, C, would be staying in the apartment that night. C arrived that evening and stayed in K's apartment, where no one else was present. At one point that evening, before K arrived home, the defendant knocked on the basement door and invited C upstairs to meet his dogs. Approxi- mately one-half hour later, after C had returned to the apartment, the defendant again came downstairs and invited C upstairs to show her some sculptures he had made. After C had viewed the sculptures, C climbed over a dog gate on the stairway to return to the basement. At that point, the defendant grabbed C under her arms and lifted her back over the gate, placing her on a couch in the living room and laying on top of her. He rubbed C's breasts and genitals over her clothing. When the defendant shifted his position, C was able to slide out from under- neath him and off the couch, and she walked to the stairway with the dog gate. The defendant followed, and, using his leg to pin C against the gate, he undid his waistband, exposed his penis, and grabbed C's hand. As C attempted to climb over the dog gate, the defendant tugged at her shirt and bra, exposing her breasts, and proceeded to kiss and lick one of C's exposed breasts and neck. C was eventually able to get over the gate, after which she returned to K's apartment and locked the door behind her. On appeal, the defendant claimed, inter alia, that the prosecutor committed prosecutorial impropriety during rebuttal closing argument, specifically by her use of the phrase ''nuts and sluts'' in her statement that, ''[i]n sex cases, it's generally nuts and sluts is what they call it. Either the victim has had other, you know, situations that you're not gonna believe that she wasn't consenting or she's nuts. And the question is do you think [C] is nuts? Because she'd have to be nuts to make all of this up.'' Held: 1. The defendant could not prevail on his claim that prosecutorial impropriety occurred as a result of certain of the prosecutor's statements during rebuttal closing argument: a. A statement made by the prosecutor discussing four general defenses in criminal cases during argument was not improper and did not imply that the defendant had a duty to present a defense: the prosecutor's statement was a brief preface to the state's rebuttal argument that C did not have a motive to lie, and, in context, was used simply to rebut defense counsel's asserted defense that C was lying about the incident and that the alleged incident never occurred; moreover, at no point during the rebuttal argument did the state suggest that the defendant had a duty to present one of the four defenses or a defense at all, and, in fact, on multiple occasions during closing arguments, the prosecutor reminded the jury that, before it could find the defendant guilty, it must find that the evidence presented proved the defendant's guilt beyond a reason- able doubt. b. This court concluded that, in this particular case, the prosecutor's use of the phrase ''nuts and sluts'' during rebuttal closing argument did not constitute prosecutorial impropriety: the prosecutor's statements, in context, invited the jury to assess C's credibility based on the relevant evidence, and were used to rebut the arguments that defense counsel had made during his summation in which he suggested that C was lying about the incident and that the alleged incident never occurred, and the statement at issue did not imply any burden of proof on the part of the defense; moreover, contrary to the defendant's claim, the statement, in context, was not highly inflammatory and did not appeal to the emotions of the jurors, as the statement was not used as a personal attack on the defendant's character or as a plea for sympathy for C or her family; furthermore, even if this court were to conclude, for the sake of argument, that the use of the phrase ''nuts and sluts'' in the prosecutor's argument was improper, it did not deprive the defendant of a fair trial, as the remarks were not frequent or severe, defense counsel did not object to the remarks when they were spoken, request curative instructions, or move for a mistrial, and, although the credibility of C was a central issue in the case and the remarks had some bearing on credibility, the defendant's reliance on centrality in support of his due process argument was counterbalanced by the fact that the defense, at least in part, invited the remarks by calling into question the veracity of C's testimony by arguing that the alleged assault did not occur, and the state presented strong direct and circumstantial evidence against the defendant, includ- ing the presence of his DNA on C's neck and contemporaneous Facebook messages from C to K pleading for help, evidence sufficiently strong enough not to have been overshadowed by the alleged improper remarks. 2. The defendant could not prevail on his claim that his punishments stem- ming from his convictions of sexual assault in the third degree and sexual assault in the fourth degree violated his constitutional protection against double jeopardy: the offenses charged did not arise from the same act or transaction as the evidence showed that the conduct related to the charge of fourth degree sexual assault began on the living room couch and ended when C slid out from underneath the defendant, stood up, and proceeded to walk away, and a separate act, the basis of the third degree sexual assault charge, occurred when the defendant subsequently approached C at the top of the stairs leading to K's apartment and pulled down C's shirt and bra, exposing her breasts, and licked her breast and neck, and the state's theory of the case at trial buttressed the conclusion that the charges stemmed from these separate acts or transactions; moreover, contrary to the defendant's contentions, the fact that the state charged the defendant with multiple offenses that occurred at the same residence in a relatively short time span did not necessarily mean that his convictions arose from the same criminal act or transaction. Argued April 6—officially released July 11, 2023

After the dissolution of the plaintiff's marriage to his former spouse, T, the plaintiff brought an action against the defendants, T's mother and stepfather, seeking damages for, inter alia, defamation. The defendants filed a motion to strike all counts of the complaint. The trial court granted the defendants' motion to strike as to all counts, finding, inter alia, that, even when construed broadly and realistically, the plaintiff's defamation allegations failed to sufficiently allege a claim for defamation with the requisite specificity. On appeal to this court, the plaintiff claims only that the trial court improperly struck the defamation counts of his complaint. Held that this court affirmed the trial court's judgment granting the defendants' motion to strike on the alternative ground that the plaintiff failed to allege reputational harm, one of the four elements necessary to establish a prima facie case of defamation per quod, and, because the plaintiff failed to plead all elements of defamation, the defamation counts were properly stricken. Argued May 9—officially released July 25, 2023

The plaintiff assignee of a municipal tax lien on certain real property in the city of Bridgeport owned by the defendant sought to foreclose the lien. At the time the defendant purchased the property in January, 2016, there were unpaid taxes assessed on the property from 2015. In April, 2017, the city filed the certificate of lien on the land records for the 2015 taxes owed on the property and subsequently assigned the tax lien to the plaintiff's predecessor in interest, which assigned the lien to the plaintiff. The defendant paid his property taxes as he received bills from the city. The first property tax bill he received was sent by the city to the defendant in July, 2017, at which time the city had already recorded and assigned to the plaintiff's predecessor in interest the tax lien, which remained due and owing on the property. The defendant never made any payments to the plaintiff in connection with the assigned lien. In May, 2020, the plaintiff commenced this action seeking to foreclose on the tax lien. In his answer, the defendant asserted that, under the applica- ble statute (§ 12-144b), the city was required to apply the amounts that he had paid from 2017 to 2020 first to the oldest outstanding taxes owed on the property, which he claimed were the taxes owed on the 2015 tax lien, by transferring those amounts to the plaintiff before applying any such amounts to the taxes that were due and owing to the city. The parties each filed a motion for summary judgment. The trial court granted the plaintiff's motion for summary judgment as to liability only and denied the defendant's motion for summary judgment, concluding that the plaintiff had established its prima facie case for foreclosure of a tax lien and that the defendant's asserted special defense of setoff was not viable. On the defendant's appeal to this court from the trial court's judgment of foreclosure by sale, held that the trial court properly granted the plaintiff's motion for summary judgment and denied the defendant's motion for summary judgment: contrary to the defendant's argument, the tax lien in question, once assigned, was no longer a debt owed to the city and, under such circumstances, the city had no legal obligation to forward to the plaintiff any tax payments that it received from the defendant, as § 12-144b makes no reference to third-party assignees of tax liens, and, had the legislature intended to require municipalities to do so, it easily could have accomplished that goal by using language making it clear that municipalities must transfer payments they receive or recover to third-party holders of previously assigned tax liens; more- over, when § 12-144b is viewed in relation to the statute concerning third-party assignees (§ 12-195h), and in the absence of any language whatsoever within § 12-144b referencing third-party holders of assigned tax liens, it cannot reasonably be inferred, solely from the language in § 12-144b requiring municipalities to ''apply'' tax payments that they receive or recover to ''outstanding secured taxes,'' that the legislature intended to require municipalities to act, in effect, as loan servicers for third-party holders of municipal tax liens. Argued May 9—officially released July 25, 2023

W Co., the plaintiff's predecessor in interest, sought to foreclose a mortgage on certain real property owned by the defendants. The defendants had executed a promissory note in the original principal amount of $231,920, which was secured by the mortgage. Thereafter, the defendants signed a loan modification agreement that they had negotiated with O Co., a loan servicing company, the terms of which, inter alia, increased the outstanding principal amount of the debt to $400,706.05. O Co. did not sign the loan modification agreement. After the defendants defaulted on the note and mortgage due to the nonpayment of monthly installments of principal and interest, W Co. declared the entire balance of the note due and payable and sought strict foreclosure of the mortgaged property. Thereafter, W Co. assigned the mortgage to the plaintiff, and the trial court granted W Co.'s motion to substitute the plaintiff as a party to the action. The trial court granted the plaintiff's motion for summary judgment as to liability and rendered a judgment of strict foreclosure. The trial court denied the defendants' motion for reconsideration. The defendants filed a motion to open and vacate the judgment, asserting, for the first time, that there was a discrepancy between the debt amount alleged in the complaint and that found in the strict foreclosure judg- ment. Two days later, the defendants filed their first appeal, claiming that the trial court erred in denying their motion for reconsideration. Approximately one week later, pursuant to the applicable statute (§ 49- 15), title to the mortgaged property vested in the plaintiff. This court dismissed the appeal as moot, and our Supreme Court denied the defen- dants' petition for certification to appeal. Thereafter, the defendants filed a memorandum of law in support of their motion to open and vacate the judgment, claiming that the trial court made a fundamental mistake in relying on the principal debt amount listed in the plaintiff's affidavit of debt, namely, $400,706.05, rather than on the $231,920 amount alleged in the complaint. The trial court denied the defendants' motion, and the defendants appealed to this court. Held: 1. Contrary to the plaintiff's claim, this court did not lack subject matter jurisdiction over the defendants' appeal: a. Although title to the mortgaged property had vested in the plaintiff following the passage of the law day in accordance with § 49-15, because the defendants claimed that the trial court made a fundamental mistake in relying on an incorrect principal amount of the debt when rendering its judgment of strict foreclosure, and because the defendants' claims of mistake and fraud presented the trial court with colorable grounds for equitable relief pursuant to U.S. Bank National Assn. v. Rothermel (339 Conn. 366), the defendants' appeal was not moot; accordingly, this court could exercise its limited, continuing jurisdiction, consistent with § 49-15, to provide the defendants with practical relief in the event that it concluded that the trial court improperly declined to exercise its jurisdiction and afford the defendants relief. b. The defendants did not abandon their claim regarding the principal debt amount by failing to raise it in their initial appeal to this court: the defendants' motion to open was not denied until after their initial appeal had been dismissed, and, as a result, the defendants could not have waived their right to raise the claim of error in the present appeal when the trial court had not ruled on the issue until after the initial appeal had been dismissed. 2. The trial court did not abuse its discretion in denying the defendants' motion to open on the merits because the facts alleged did not present the type of rare and exceptional circumstance required pursuant to Rothermel for the court to exercise a limited form of continuing jurisdic- tion after title to the mortgaged property had vested in the plaintiff: a. The trial court reasonably could have concluded that, even if a mistake had occurred, it did not rise to the level of the rare and exceptional circumstance that would require a court in equity to provide relief, as the plaintiff expressly relied on the $400,706.05 principal debt amount in both of its motions for summary judgment, the defendants opposed both motions yet, in doing so, failed to raise the issue regarding the amount of the debt, and a copy of the loan modification agreement that had been signed by the defendants was before the trial court; moreover, the trial court reasonably could have determined that the defendants had ample opportunities throughout the lifespan of the case to raise the issue of the modified debt amount and that their decision to delay doing so until after title to the real property had vested in the plaintiff under- mined their argument that the alleged mistake warranted equitable relief. b. The defendants' bare assertion of fraud by the plaintiff did not satisfy the clear and satisfactory evidence standard, and it fell short of the rare and exceptional circumstance justifying continuing jurisdiction under Rothermel because the defendants did not present any persuasive evi- dence that the plaintiff intentionally pleaded a greater debt amount than was actually owed so that its mortgage servicer could earn an increased fee; moreover, the plaintiff's assertion that the loan modification agree- ment modified the loan did not prove that it was aware that the modified principal amount of the debt was inaccurate, throughout the entirety of the action the plaintiff consistently alleged that the principal debt amount was $400,706.05, and it reasonably could be inferred that the plaintiff acted under the belief that the loan modification agreement was effective because it was signed by the defendants. Argued April 10—officially released August 1, 2023